Matter of Pierre
| Decision Date | 05 October 1973 |
| Docket Number | Interim Decision Number 2238,A-20182758-763 |
| Citation | 14 I&N Dec. 467 |
| Parties | MATTER OF PIERRE ET AL. In Exclusion Proceedings |
| Court | U.S. DOJ Board of Immigration Appeals |
The aliens, hereafter referred to as "applicant," appeal from the May 24, 1973 decision of the immigration judge in which he found them excludable under section 212(a)(20) of the Immigration and Nationality Act, and refused to hear their claims of persecution under section 243(h) of the Act. The appeal will be dismissed.
The principal question to be decided is whether these cases are properly in exclusion rather than deportation proceedings. The applicants are all natives and citizens of Haiti. They left Haiti in a small boat, which fell into distress and was towed into West Palm Beach, Florida, a designated port of entry, 8 CFR 100.4(c)(2) by an American vessel on May 20, 1973. Upon being questioned, they informed the captain of the American vessel that they had no entry documents. Then they waited on board for the arrival of immigration officers in the hope of being allowed to remain in the United States as political refugees. Because they did not appear to the immigration officers to be clearly and beyond a doubt entitled to land, the matter was referred to the immigration judge for further inquiry in accordance with section 235(b) of the Act. The applicants were held in custody until June 15, 1973, when they were paroled in the custody of a group of ministers. Their applications for political asylum were denied by the District Director after he had consulted with the Office of Refugee and Migration Affairs of the Department of State.
The applicants contend thay they should be heard in deportation (i.e. expulsion) rather than exclusion proceedings. Therefore, the key question is whether or not an entry was made, since it is clear that they did not effect an "entry" into this country, exclusion proceedings were proper, whereas the proceedings must be in deportation if the aliens made an "entry."
Section 291 of the Immigration and Nationality Act provides that any person who applies for admission to the United States must establish that he is not subject to exclusion. An alien who has effected an entry is not subject to exclusion, but rather to deportation. Section 291 further provides that in deportation proceedings the respondent must bear the burden of showing the time, place, and manner of his entry into the United States. It follows, therefore, that the responsibility for establishing whether an entry has been made rests on the alien.
The courts have found it necessary to interpret the term "entry," which is now defined in section 101(a)(13) of the Act as "...any coming of an alien into the United States, from a foreign port or place or from an outlying possession...." A survey of the many cases which have treated this subject over the years leads to the following conclusion: An "entry" involves (1) a crossing into the territorial limits of the United States, i.e. physical presence; plus (2) inspection and admission by an immigration officer, United States v. Vasilatos, 209 F.2d 195 (C.A. 3, 1954); Lazarescu v. United States, 199 F.2d 898, 900 (C.A. 4, 1952); or (3) actual and intentional evasion of inspection at the nearest inspection point, U.S. ex rel. Giacone v. Corsi, 64 F.2d 18 (C.A. 2, 1933); Morini v. United States, 21 F.2d 1004 (C.A. 9, 1927), cert. den. 276 U.S. 623 (1928); Lew Moy v. United States, 237 Fed. 50, 52 (C.A. 8, 1916); Matter of Estrada-Betancourt, 12 I. & N. Dec. 191, 193-4 (BIA 1967); Matter of Albuerne-Urquiza, A17 334 264, unreported decision (BIA October 12, 1967); coupled with (4) freedom from restraint, United States v. Vasilatos, supra; Lazarescu v. United States, supra. In all of the above cases these conditions were satisfied and an entry was effected.
In contrast, the courts have held that no entry is made when the alien is taken into custody upon his arrival at an American port (even though he may possess a valid immigrant visa), Klapholz v. Esperdy, 302 F.2d 928, 929 (C.A. 2), cert. den. 371 U.S. 891 (1962). There is no entry when the alien is under official restraint, even after his ship has arrived at port and he has been inspected and given a conditional landing permit, In re Dubbiosi, 191 F.Supp 65, 66 (E.D.Va.1961). The restraint may take the form of surveillance, unbeknownst to the alien; he has still not made an entry despite having crossed the border with the intention of evading inspection, because he lacks the freedom to go at large and mix with the population, Ex parte Chow Chok, 161 Fed. 627, 629-30, 632 (N.D.N.Y.), aff'd 163 Fed. 1021 (C.A. 2, 1908).
Parole is not an admission, section 212(d)(5), Immigration and Nationality Act, and therefore does not constitute an entry, Leng May Ma v. Barber, 357 U.S. 185, 186, 188-90 (1958); Vitale v. INS, 463 F.2d 579, 582 (C.A. 7, 1972); Siu Fung Luk v. Rosenberg, 409 F.2d 555, 558 (C.A. 9), cert. denied 396 U.S. 801 (1969); U.S. ex rel. Tom We Shung v. Murff, 176 F.Supp 253, 256 (S.D.N.Y.1959), aff'd 247 F.2d 667 (C.A. 2, 1960). Moreover, when an alien crosses the border, intends to present himself for inspection, and follows the ordinary path from the international line to the nearest inspection point, he has not effected an entry, Thack v. Zurbrick, 51 F.2d 634, 635-36 (C.A. 6, 1931). A fortiori an entry is not made when an alien merely crosses into the territorial waters of the United States without landing and without evading inspection.
In the present case, the aliens arrived at port but did not land. Instead, they waited on board their vessel until they could be inspected by immigration officers. While they may have crossed into the territorial limits of the United States, they were not admitted by immigration officers, nor did they intentionally evade inspection. On the contrary, they requested inspection (Tr. P. 12). The captain of the American vessel has no authority to admit them. Indeed, he would have been subject to penalties if he had permitted them to land, sections 271 and 273, Immigration and Nationality Act.
Counsel relies heavily on Matter of Estrada-Betancourt, supra, in which we found that an entry had been made and that, therefore, deportation proceedings rather than exclusion proceedings were proper. The aliens in that case did not arrive at a "designated port of entry." We stated that they "were required to proceed by the ordinary route to the nearest...
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